Citation Nr: 0919508
Decision Date: 05/08/09 Archive Date: 06/02/09
DOCKET NO. 04-02 075 ) DATE MAY 08 2009
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On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico
THE ISSUES
1. Entitlement to a schedular rating higher than 40 percent for a low back disability, discogenic disease of the lumbar spine.
2. Entitlement to a rating higher than 40 percent for this low back disability on an extra-schedular basis.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Biswajit Chatterjee, Associate Counsel
INTRODUCTION
The Veteran served on active duty in the military from June 1970 to March 1973.
This appeal to the Board of Veterans’ Appeals (Board) is from March 2002 and May 2003 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico.
As support for his claim, the Veteran testified at a hearing at the RO in May 2006 before the undersigned Veterans Law Judge (VLJ) of the Board, also commonly referred to as a Travel Board hearing. During the hearing the Veteran submitted additional evidence and waived his right to have the RO initially consider it. 38 C.F.R. §§ 20.800, 20.1304 (2008).
In November 2006, the Board remanded the claim for an increased schedular rating for the discogenic disease of the lumbar spine to the RO, via the Appeals Management Center (AMC), for additional development and consideration. In January 2008, the AMC issued a supplemental statement of the case (SSOC) continuing to deny the claim and returned the file to the Board for further appellate review.
There is now sufficient evidence to decide the claim for a higher schedular rating for the low back disability. But, regrettably, the ancillary issue of whether the Veteran is entitled to greater compensation for this disability on an extra-schedular basis must be remanded to the RO via the AMC to determine, in the first instance, whether this additional consideration is warranted under the facts of this case.
FINDINGS OF FACT
1. The Veteran's low back disability was previously manifested by bilateral (i.e., right- and left-sided) S1 radiculopathy. More recently, however, his low back disability has been manifested only by right-sided radiculopathy/sciatic neuropathy.
2. The Veteran’s low back disability has not been manifested by severe intervertebral disc syndrome (IVDS), with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief.
3. At no time during the course of this appeal has the Veteran’s low back disability been manifested by vertebral fracture requiring a neck brace.
4. At no time during the course of this appeal has the Veteran’s low back disability been manifested by unfavorable ankylosis of the thoracolumbar or entire spine.
CONCLUSION OF LAW
The criteria are not met for a rating higher than 40 percent for the Veteran’s
service-connected low back disability. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.21, 4.40, 4.45, 4.71a, Diagnostic Codes 5235-5243 (September 26, 2003); Diagnostic Codes 5285-5295 (2001, 2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
In the interest of clarity, the Board will initially discuss whether the claim has been properly developed for appellate review. The Board will then address the claim on its merits, providing relevant VA laws and regulations, the relevant factual background, and an analysis of its decision.
I. The Duties to Notify and Assist
As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008).
Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002).
In addition, the VCAA notice requirements apply to all five elements of a
service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran’s service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff’d sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Further, this notice must include information that a downstream disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486.
To the extent possible, VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively “cured” by providing any necessary VCAA notice and then going back and readjudicating the claim — such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).
In Sanders v. Nicholson, 487 F. 3d 881, 889 (Fed. Cir. 2007), the U.S. Court of Appeals for the Federal Circuit held that any error in a VCAA notice, concerning any element of a claim, is presumed prejudicial, and that VA then bears the burden of rebutting this presumption. However, the Supreme Court of the United States recently reversed the Federal Circuit’s holding in Shinseki v. Sanders, 556 U. S. ___ (2009). The Supreme Court held that the Federal Circuit placed an “unreasonable evidentiary burden upon the VA…” by creating a presumption of prejudice with regard to deficient VCAA notice. (slip. op. at 11). The Supreme Court reiterated that “the party that ‘seeks to have a judgment set aside because of an erroneous ruling carries the burden of showing that prejudice resulted.’” Id., citing Palmer v. Hoffman, 318 U. S. 109, 116 (1943); see also Tipton v. Socony Mobil Oil Co., 375 U. S. 34, 36 (1963) (per curiam); United States v. Borden Co., 347 U. S. 514, 516–517 (1954); cf. McDonough Power Equipment, Inc. v. Greenwood, 464 U. S. 548, 553 (1984); Market Street R. Co. v. Railroad Comm’n of Cal., 324 U. S. 548, 562 (1945) (finding error harmless “in the absence of any showing of . . . prejudice”). The Supreme Court emphasized that its holding did not address the lawfulness of the U.S. Court of Appeals for Veterans Claims’ reliance on the premise that a deficiency with regard to informing a Veteran about what further information was necessary to substantiate his claims had a “natural effect” of prejudice, but deficiencies regarding what portions of evidence VA would obtain and what portions the Veteran must provide did not. (slip. op. at 3).
Prejudicial deficiencies in the timing or content of a VCAA notice can be cured by showing the essential fairness of the adjudication will not be affected because: (1) the defect was cured by actual knowledge on the part of the claimant, see Vazquez-Flores v. Peake, 22 Vet. App. 37, 48 (2008) ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F. 3d at 889. Additionally, consideration also should be given to “whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre-adjudicatory section 5103(a) notice error non-prejudicial.” Vazquez-Flores, 22 Vet. App. at 46. See also Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding the Board had erred by relying on various post-decisional documents for concluding adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, the Court nonetheless determined the evidence established the Veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, and therefore found the error harmless).
In this case, letters satisfying the notice requirements under 38 C.F.R. § 3.159(b)(1) were sent to the Veteran in February and June 2004 and in December 2006. The letters informed him of the evidence required to substantiate his claim, and of his and VA’s respective responsibilities in obtaining supporting evidence. Note also that the March, April, May and December 2006 letters complied with Dingess by discussing the disability rating and downstream effective date elements of his claim. And of equal or even greater significance, after providing that additional Dingess notice, the RO went back and most recently readjudicated his claim in the January 2008 SSOC — including considering the additional evidence received in response to that additional notice. See again, Mayfield IV and Prickett, supra. So the timing defect in the provision of the Dingess notice has been rectified.
For an increased-compensation claim, 38 U.S.C. § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability, and the effect that such worsening or increase has on the claimant's employment and daily life. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim").
Further, if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on employment and daily life (such as a specific measurement or test result), VA must provide at least general notice of that requirement. VA must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation–e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Id.
In this case, the Board acknowledges that the VCAA letters sent to the Veteran do not meet the requirements of Vazquez-Flores and are insufficient as to content and timing, creating a prejudicial deficiency in VCAA notice. Nevertheless, this prejudicial deficiency is cured. He was provided correspondence regarding what was needed to support his claim for a higher rating. Specifically, the September 2002 SOC and November 2003 SSOC list the requirements for obtaining a higher rating for his lumbar spinal disability, obviating the need for another VCAA notice letter to address these same criteria. It is reasonable to expect him to understand from the various letters from the RO and AMC what was needed to support his claim. And of equal or even greater significance, he demonstrated actual knowledge of what was needed to support his claim as reflected in his statements, correspondence, and hearing testimony. Quite significantly, his representative referenced relevant, specific rating criteria relating to the increased-rating claim in the April 2009 informal hearing presentation — including, for example, urging consideration of incapacitating episodes and functionality as grounds for a higher rating for the Veteran's low back disability. So the notice deficiencies will not affect the essential fairness of the adjudication. The Vazquez-Flores requirements have been met because the Veteran and his representative have the requisite actual knowledge of what evidence is needed to support the claim, including in terms of the disability’s affect on the Veteran’s day-to-day activity.
VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claim that is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). The RO obtained his VA treatment records, Social Security Administration (SSA) disability records and arranged for several VA compensation examinations to assess the severity of his low back disability, including at the Board’s remand request. The record is inadequate and the need for a more contemporaneous examination occurs only when the evidence indicates the current rating may be incorrect. 38 C.F.R. § 3.327(a) (2008). Here, a VA compensation examination of the Veteran’s low back disability was provided in October 2007, so relatively recently. Consequently, another examination to evaluate the severity of this disability is not warranted because there is sufficient evidence, already of record, to fairly decide this claim insofar as assessing the severity of the condition. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995). Therefore, the Board finds that VA has complied with the duty-to-assist requirements.
II. Analysis—Entitlement to a Schedular Rating Higher than 40 Percent for the Low Back Disability, Discogenic Disease of the Lumbar Spine
The Veteran’s discogenic disease condition has been evaluated as 40-percent disabling under the criteria for IVDS. He claims his condition has worsened so as to warrant a higher rating.
With respect to the claim for his spinal disorder, he is not appealing his initial rating assigned in a previous rating decision, so the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, that said, the Court recently held that in determining the “present level” of a disability for any increased-evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007).
In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The relevant temporal focus for adjudicating the level of disability of an increased rating claim is from the time period one year before the claim was filed — so in this case, June 2000 — until VA makes a final decision on the claim. See Hart, supra. See also 38 U.S.C.A. § 5110(b)(2) (West 2002 and Supp. 2007); 38 C.F.R. § 3.400(o)(2) (2008).
Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, this doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. The Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether they were expressly raised, as well as the entire history of the Veteran’s disability in reaching its’ decision. See 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995).
The criteria for rating disabilities of the spine have been amended on two occasions since the Veteran filed his claim. In the first change, effective September 23, 2002, VA revised the criteria for evaluating spinal disorders under Diagnostic Code 5293, for IVDS. 67 Fed. Reg. 54,345-54,349 (2002). Shortly thereafter, VA again revised the criteria for evaluating spine disorders, effective September 26, 2003. 68 Fed. Reg. 51,454-51,458 (2003). The amendments have established the effective dates without a provision for retroactive application.
The Board is required to consider the claim in light of both the former and revised schedular rating criteria. VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the Veteran. 38 U.S.C.A. § 5110(g); VAOPGCPREC 3-2000 (April 10, 2000). See also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003 (November 19, 2003). In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. The revised rating criteria, however, if favorable to the claim, may be applied only prospectively for periods from and after the effective date of the regulatory change. The former statute or regulation, though, if more favorable, may be applied without any such limitations as to the effective date of the revised criteria. Id. Thus, the amendments may be applied after, but not prior to, September 23, 2002, and September 26, 2003, respectively.
Apart from IVDS, none of the former rating criteria (in effect prior to September 26, 2003) for the Veteran's spinal disability affords him any opportunity for a rating higher than 40 percent. The maximum possible ratings for limitation of motion of the lumbar spine (under the former DC 5292) and lumbosacral strain (under the former DC 5295) are 40 percent. The Veteran already has a rating at this level, so this precludes their consideration in this appeal. Moreover, he does not have residuals of vertebra fracture (DC 5285) or sacro-iliac injury and weakness (DC 5294), so those DCs do not apply. 38 C.F.R. § 4.71a. See also Butts v. Brown, 5 Vet. App. 532 (1993) (choice of diagnostic code should be upheld if supported by explanation and evidence).
There is also no ankylosis of the lumbar segment of the spine (DC 5289), let alone of the entire spine (DC 5286). In this regard, the most recent VA spinal examination report in October 2007 does not indicate the Veteran’s thoracolumbar spine is ankylosed, as motion was possible in every direction. Indeed, even with consideration of pain, his thoracolumbar spine demonstrated flexion of 20 degrees, extension of 10 degrees, left lateral rotation of 30 degrees, right lateral rotation of 15 degrees, left lateral flexion of 30 degrees, and right lateral flexion of 15 degrees.
In fact, none of the VA examinations or treatment records indicate any ankylosis of his lumbar spine. In short, since his thoracolumbar spine is not ankylosed, despite being significantly limited in motion, a disability rating in excess of 40 percent is not warranted.
As for the revised criteria, apart from IVDS, these are set forth under the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Under the General Formula, a potentially higher 50 percent disability rating is available for unfavorable ankylosis of the entire thoracolumbar spine, and an even higher 100 percent disability rating for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a, DCs 5235-5242. But, as mentioned, the most recent VA spinal examination report in October 2007 does not indicate the Veteran’s thoracolumbar spine is ankylosed, as motion was possible in every direction — albeit less than normal range of motion. Ankylosis, by definition, is the complete immobility and consolidation of a joint due to disease, injury or surgical procedure. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) and Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. See, too, Note (5) to DCs 5235-5242 indicating that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire … thoracolumbar spine, or the entire spine is fixed in flexion or extension,…. Therefore, a disability rating in excess of 40 percent is not warranted under the newly revised General Rating Formula for Diseases and Injuries of the Spine.
In addition to the above schedular criteria, the Board also finds that a disability rating in excess of 40 percent is not warranted based on functional loss due to pain, weakness, fatigability, or incoordination of the lumbar spine. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202,
204-08 (1995). Range-of-motion testing during the Veteran’s October 2007 VA examination produced pain and fatigability, and continued upon repetitive use, though without weakness or fatigue. In addition, he walks with a brace.
But if, as here, a Veteran is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable. Johnston v. Brown, 10 Vet. App. 80 (1997). Further concerning this, keep in mind the Veteran has the highest possible rating for limitation of motion, 40 percent, in the absence of ankylosis. And this is true whether considering the former or revised criteria.
The Board next turns its focus to the IVDS rating criteria, both former and revised.
Diagnostic Code 5293 (in effect prior to September 23, 2002) provided ratings based on IVDS. Postoperative IVDS that was cured was to be rated noncompensably (0 percent) disabling. Mild IVDS was to be rated 10 percent disabling. Moderate IVDS with recurring attacks was to be rated 20 percent disabling. Severe IVDS with recurring attacks with intermittent relief was to be rated 40 percent disabling. A higher 60 percent rating is potentially available under the former Diagnostic Code 5293 for pronounced IVDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief. See 38 C.F.R. § 4.71a, DC 5293.
The first amendment pertaining to IVDS became effective on September 23, 2002. Diagnostic Code 5293 (in effect from September 23, 2002 to September 25, 2003) provided that IVDS (preoperatively or postoperatively) was to be rated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate ratings of its chronic orthopedic and neurologic manifestations along with ratings for all other disabilities, whichever method results in the higher rating. Diagnostic Code 5293 (in effect from September 23, 2002 to September 25, 2003) provided a 10 percent rating for IVDS with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months; a 20 percent rating for IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent rating for IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating for IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a.
Notes following Diagnostic Code 5293 (in effect from September 23, 2002 through September 25, 2003) provided further guidance in rating IVDS. Note (1) provided that, for purposes of ratings under Diagnostic Code 5293, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from IVDS that are present constantly, or nearly so. Note (2) provide that, when evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. Note (3) provide that, if IVDS is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, rate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher rating for that segment. 38 C.F.R. § 4.71a.
Effective September 26, 2003, that portion of the rating schedule pursuant to which diseases and injuries of the spine are evaluated was revised. DC 5293 for rating IVDS was changed to DC 5243, which provides that ratings are now based on either the General Rating Formula for Diseases and Injuries of the Spine (effective September 26, 2003), or on the basis of incapacitating episodes (the criteria for which remain unchanged from September 23, 2002), whichever method results in a higher rating when all disabilities are combined under 38 C.F.R. § 4.25.
Applying the above criteria to the facts of this case, the Board finds that the Veteran’s low back disability does not meet either the former or revised criteria for a disability rating higher than 40 percent for IVDS.
First, there are simply no findings suggesting the Veteran’s spine is manifested by “pronounced” IVDS, as required for a 60 percent rating under the old criteria of DC 5293. The October 2000 and August 2001 VA spine examination reports found the Veteran's discogenic disease was manifested by bilateral S1 radiculopathy. But more importantly, his IVDS symptomatology did not rise to a “pronounced” level. Indeed, he denied having any IVDS to the October 2007 VA examiner. And there is no discussion or confirmation of recurring attacks, incapacitating episodes, or any other symptoms of IVDS by the October 2000, August 2001, February 2003, and October 2004 VA examiners. He may indeed have some spinal disability symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief. But the RO’s assignment of a 40 percent rating under the former DC 5293 contemplates this level of neurologic pathology. This precludes the Board from considering a separate 10 percent rating for bilateral radiculopathy under the former criteria. Unfortunately for the Veteran’s claim, there is simply no evidence confirming his IVDS is of a persistent state. These findings do not reflect pronounced IVDS of the lumbosacral spine, thereby providing highly probative evidence against the Veteran’s claim under DC 5293.
Second, with respect to the revised rating criteria for IVDS, effective September 23, 2002, the evidence does not establish the occurrence of incapacitating episodes due to the Veteran’s low back pain. Again, there are simply no documented periods of acute signs and symptoms due to IVDS requiring bed rest prescribed by a physician and treatment by a physician. In fact, to the contrary, the Veteran himself denied experiencing any IVDS during his most recent VA examination, and no VA examiners during the appeal period have confirmed any incapacitating periods. Without objective evidence of at least one week of prescribed bed rest per year, the Veteran does not even warrant a 10 percent rating under the revised rating criteria of DC 5243. And there is certainly no evidence of incapacitating episodes having a total duration of at least six weeks, as required for a much higher 60 percent rating.
The February 2003 VA examiner indicated the Veteran has right-sided radiculopathy of the S1-disc level. It appears that neurological symptomatology was already considered by the RO in assigning his current 40 percent rating, especially given the absence of objective medical evidence of incapacitating episodes for IVDS. 38 C.F.R. § 4.25. This precludes the Board from considering a separate 10 percent rating for right radiculopathy under the revised criteria. Therefore, his IVDS does not warrant a rating higher than 40 percent under the revised criteria.
The Board cannot otherwise “stage” the Veteran’s rating under Hart. His spinal disability has never been more than 40 percent disabling at any time since June 2000 (one year prior to filing his current claim). See Hart v. Mansfield, 21 Vet. App. 505 (2007). In summary, the Board finds that the preponderance of the evidence is against a disability rating greater than 40 percent, under the rating criteria of either the former or revised spine regulations. And since the preponderance of the evidence is against the claim, there is no reasonable doubt to resolve in the Veteran’s favor. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1991).
ORDER
The claim for a rating higher than 40 percent for the low back disability is denied.
REMAND
Before addressing the remaining claim on appeal, the Board finds that additional development of the evidence is required. The Board has considered whether the Veteran’s disability picture is so severe as to warrant extra-schedular consideration. Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993); 38 C.F.R. § 3.321(a), (b) (2008).
According to § 3.321(b)(1)(2008), an extra-schedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993).
The Court has held that the question of an extra-schedular rating is a component of a Veteran's claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 157 (1996). Bagwell stands for the proposition that the Board may deny extra-schedular ratings, provided that adequate reasons and bases are articulated. See VAOPGCPREC 6-96 (Board may deny extra-schedular ratings, provided that the RO has fully adjudicated the issue and followed appropriate appellate procedure). Bagwell left intact a prior holding in Floyd v. Brown, 9 Vet. App. 88, 95 (1996), wherein the Court had found that when an extra-schedular grant may be in order, that issue must be referred, pursuant to 38 C.F.R. § 3.321, to those "officials who possess the delegated authority to assign such a rating in the first instance."
In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service- connected disability are inadequate. If the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Id.
There are several significant findings of record providing some insight into how the Veteran’s service-connected low back disability may markedly interfere with his employability, though without necessarily resolving this issue.
Importantly, the Veteran's low back disability appears to be quite severe and potentially inadequately compensated by his current 40 percent rating, as shown by the most recent VA spine compensation examination report in October 2007. He is diagnosed with lumbar strain, lumbar discogenic disease, and lumbar spondylosis. Although he denied experiencing IVDS to the examiner, the objective range of motion findings for his thoracolumbar spine showed extremely limited (but not ankylosed) motion, when considering pain, with forward flexion to only 20 degrees and extension to only 10 degrees. He also has some neurological symptoms from his IVDS. Earlier examination reports alternatively noted both right and bilateral (right and left) S1 radiculopathy.
Further, there are related factors of marked interference with employment.
The October 2007 VA examiner concluded the Veteran’s spinal disabilities “are of moderate to severe intensity,” which “preclude him to work or obtain gainful employment due to poor tolerance for standing, sitting, driving or ambulation.” He has been unemployed since 2001 or thereabouts, at least in part because of his low back disability. He also began receiving SSA disability benefits for his arthritis at that time. His reported history states that he stopped working as an accountant due to inability to sit or stand for more than 10 minutes at a time.
In light of these facts, the Board is remanding this case to the RO for consideration of an extra-schedular rating:
1. Determine whether the Veteran is entitled to extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). If he is, refer this case to the Under Secretary for Benefits or the Director of Compensation and Pension Service for appropriate action.
2. If this claim is not granted to the Veteran’s satisfaction, prepare an SSOC and send it to him and his representative. Give them time to respond to it before returning this case to the Board for further appellate consideration.
The Veteran has the right to submit additional evidence and argument concerning the claim the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 and Supp. 2007).
_________________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans’ Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2008).
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.”
If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance:
? Appeal to the United States Court of Appeals for Veterans Claims (Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and material evidence.
There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office.
How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA clearly explaining why you believe that the BVA committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that such letter be as specific as possible. A general statement of dissatisfaction with the BVA decision or some other aspect of the VA claims adjudication process will not suffice. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help Veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information, as well as information about free representation through the Veterans Consortium Pro Bono Program (toll free telephone at: (888) 838-7727), is also provided on the Court's website at: http://www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. 14.636(c)(2).
The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement.
Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d).
Filing of Fee Agreements: In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to the Secretary at the following address:
Office of the General Counsel (022D)
810 Vermont Avenue, NW
Washington, DC 20420
The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d).
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